Plummer v. Waskey

Moylan, J., delivered the opinion of the Court. Nelle W. Murray died on August 13, 1975, at the Baltimore County General Hospital, where she had been taken two weeks earlier. She was 82 years of age. She had no children.

The closest remaining relatives were second cousins. On August 22, the appellant, Risque W. Plummer, who had been Mrs. Murray’s lawyer for some 25 years, submitted for judicial probate a conformed carbon copy of a Last Will and Testament executed by the decedent on August 17,1967, and a Codicil thereto dated July 22, 1973. In his petition for probate, Mr. Plummer stated that he had made a diligent search for the original of the aforesaid will and codicil thereto but was unable to find the original of either of said instruments. The conformed carbon copies were the copies that Mr. Plummer had retained in his files after he had prepared the aforesaid instruments.

He prayed that he be appointed personal representative of the decedent’s estate, since he was named as executor in the will. In the will, Mrs. Murray made numerous bequests, including the bequest of her silverware and her diamond and pearl jewelry to the appellant’s wife, Constance B. Plummer. She also provided that the rest, residue and remainder of her property and estate was to go to Mr. and Mrs. Plummer. In the codicil, Mrs. Murray revoked many of the cash bequests ⁴⁷² she had made in her aforesaid will.

The bequests to Mr. and Mrs. Plummer remained the same. A hearing was held on the matter in the Orphans’ Court of Baltimore County, at which the appellees as next of kin of Mrs. Murray appeared without counsel. None of them objected to the probate of the will. The sole issue before the court was whether the legal presumption of revocation which arose from the fact that the original will and codicil thereto had been in Mrs. Murray’s possession and could not be found at the time of her death was rebutted by the evidence.

The two judges of the court who heard the case were divided as to whether the presumption had been overcome and, therefore, probate was denied. This is an appeal from that order of the Orphans’ Court. On appeal, the appellant argues that the legal presumption of revocation had been rebutted by the evidence. We proceed, therefore, to recount the evidence as presented at the hearing.

The appellant, Risque W. Plummer, Esquire, had been the decedent’s attorney for approximately 25 years. He first represented her in connection with the settlement of the estate of her stepmother, whose will left the house at 7308 Liberty Road, in which Mrs. Murray was living at the time of her death, and its contents to Mrs. Murray. During the next two decades, Mr. Plummer performed various other legal services for Mrs. Murray. He obtained a divorce for her from her husband, who had deserted her some 20 years earlier; to supplement her Social Security income, he legally invaded the principal of a trust estate established by her father; he drew numerous wills for her; he settled many small insurance claims.

He also performed various personal services for the decedent, who had been deaf since childhood. (Everyone communicated with Mrs. Murray in writing; she, however, was able to speak.) He had a special telephone installed for her; he helped her get her Social Security; he had the assessment lowered on her house. Mr. Plummer testified that Mrs. Murray “ran me ragged, so to speak, for 25 years, and I never refused her and always made myself available to her .. . [W]hen she got to the point where she ⁴⁷³ couldn’t get around too well I would go to her house and I have been there hundreds of times over 25 years. . .” He testified that since Mrs. Murray lived very frugally, he did not know that she had anything to compensate him with, so he charged her “very, very nominal” fees and in many instances none at all. During the years, Mrs. Murray had a close relationship with both Mr. and Mrs. Plummer.

She communicated with both of them on a regular basis, sending a card or a letter to them one, two or three times a week up until the time of her death. She would also call them on the phone frequently. Mrs. Murray always invited Mrs. Plummer to come with Mr. Plummer. Mrs. Plummer testified, however, that she did so only when Mrs. Murray really insisted and on special occasions like Christmas, Easter, Mrs. Murray’s birthday, and several other times.

She testified that she enjoyed a pleasant relationship with Mrs. Murray and that she was apparently the only person who could communicate orally with the decedent — Mrs. Murray was able to read Mrs. Plummer’s lips. Mr. Plummer testified that over the years he had drawn numerous wills for Mrs. Murray. In each of them, Mrs. Murray named him as executor. In the first will that Mr. Plummer prepared, Mrs. Murray named him as one of three residuary legatees; in the second will, he was named as one of two residuary legatees; and in the third will, he was named as the sole residuary legatee.

Mr. Plummer testified that as time passed, Mrs. Murray developed a fondness for Mrs. Plummer and, as a result, in subsequent wills both Mr. and Mrs. Plummer were named as residuary legatees. Because Mrs. Murray had named him as one of her beneficiaries, Mr. Plummer purposely referred her to outside counsel after he drew each will to make sure that she understood what she was doing and to have outside counsel examine her regarding her competency. In order to execute the two wills Mr. Plummer drafted for Mrs. Murray in 1953 and the one in 1955, he referred her to C. Keating Bowie, Esquire, who had an office in the same building as Mr. Plummer. Mr. Bowie examined Mrs. Murray on each ⁴⁷⁴ occasion to make sure that she understood the contents of the will, that she was not influenced in any way in making the bequests and that she was competent to execute the instrument.

A letter from Mrs. Murray to Mr. Plummer dated September 27, 1955, which Mr. Plummer had kept in his file, was introduced into evidence. In the letter Mrs. Murray stated that she did not want any “unpleasantness from my various distant relatives” because she had mentioned Mr. Plummer in her will. She suggested that Mr. Plummer insert the following clause’in the will: “For the help my attorney & executor has given me on numerous occasions, knowing I was alone and handicapped by loss of hearing I am remembering him in this will. He has never in any way tried to influence me in making any will — He knew nothing whatever of my plans until I gave him lists.” As to the wills Mr. Plummer drafted for Mrs. Murray in 1963, 1965 and 1967, he referred her to Richard H. James, Esquire, another attorney in the same office building (Mr. Bowie had moved to another office building).

Mr. James followed the same procedure as Mr. Bowie. At the time of the execution of the codicil on July 22, 1973, Mr. Plummer prepared and Mrs. Murray signed a statement, witnessed by a Francis J. Fagan and Lucille M. Fagan, neighbors of Mrs. Murray’s who had also witnessed the codicil, stating that the codicil expressed her wishes and that she fully understood it. Mr. Plummer testified that he always gave the original of each instrument, including the will and codicil in question, to Mrs. Murray and kept a conformed carbon copy in his file. Mr. Plummer told Mrs. Murray to put the instrument in a safe place, such as her safe deposit box.

He told her to destroy the prior will whenever she had a new will drawn. Mr. Plummer never asked Mrs. Murray, however, where she put a will, although he stated that Mrs. Murray preferred to keep all of her possessions around her, including articles which should have been in the safe deposit box. ⁴⁷⁵ Before they moved to Florida in April of 1975, Lucille Fagan and her husband had been Mrs. Murray’s neighbors for approximately 25 years. Mrs. Fagan testified that she and her husband on many occasions took care of Mrs. Murray when she was ill or otherwise needed them. When asked what the relationship between Mrs. Murray and Mr. Plummer was over the course of the 25 years, Mrs. Fagan stated: “[T]here never was anyone so attentive to a lonely old woman as Mr. Plummer.

And I know this for a fact because I lived practically with Nelle. . . . [I]f Nelle’s water came down her fireplace it was Mr. Plummer that she called. He — anytime, snow storm, she called him and she respected him. . . . [A]nytime that she needed anything she called Mr. Plummer.” The relationship between Mrs. Murray and Mr. Plummer was such that Mrs. Murray gave Mr. Plummer a general power of attorney in an instrument dated July 24, 1972. Mr. Plummer filed the instrument with the Maryland National Bank, Woodmoor Branch, where the testatrix had accounts and a safe deposit box. In his letter transmitting the power of attorney to the bank, he stated that it was to be used in case of an emergency.

The close and amicable relationship between Mrs. Murray and Mr. Plummer, however, changed shortly before her death. In the summer or fall of 1974, Mrs. Murray asked Mr. Plummer if he knew of a broker, since her broker had gone out of business, who could help her with stock transactions. Mr. Plummer suggested his son, Randolph (Randy), a registered broker with Kidder-Peabody & Company. Mrs. Murray made approximately five stock purchases through Randy from November 8, 1974, through February 26, 1975.

In April of 1975, Mrs. Murray began writing to Mr. Plummer and Kidder-Peabody, however, complaining that she had not received one or two of these ⁴⁷⁶ securities. In her letter to Mr. Plummer of May 16,1975, she wrote, in pertinent part: “With you and Connie main beneficiaries in my will, am trying to leave as much as possible to pay you for the help you have given me. (I know C. doesnt understand this). But I can assure you, it is true.

Am trying to leave the property in as good condition as possible to bring a good price.” Mr. Plummer testified that Randy immediately expedited delivery of these securities to Mrs. Murray. Mrs. Murray, however, continued to worry about the securities and complained about not receiving her cancelled checks, with which she had paid for the securities. On June 18, 1975, Mr. Plummer and his son went to see Mrs. Murray. They found that she had in fact received all of the stock certificates and all of the cancelled checks.

Mr. Plummer testified further that Mrs. Murray then became angry with the Maryland National Bank, Woodmoor Branch, thinking that they had her stock certificates. On June 27, she had Mr. Plummer open an account for her at the Union Trust Company and gave him a limited power of attorney over that account. She then gave Mr. Plummer the keys to her safe deposit box at Maryland National and had him close out her accounts and the safe deposit box, pursuant to the general power of attorney given him in 1972. Mr. Plummer gave Mrs. Murray the contents of the safe deposit box.

In a letter to the Maryland National Bank, Woodmoor Branch, postmarked the evening of July 28,1975, the night Mrs. Murray was taken to the hospital, but dated August 3, 1975 (Mrs. Murray, Mr. Plummer testified, was a week ahead of herself during the latter months of her life), Mrs. Murray complained that all of her stock certificates were not in the contents of the safe deposit box. In the letter she stated that Kidder-Peabody wrote her that all stock certificates were sent to the Maryland National Bank but that the Baltimore Gas & Electric and the Ohio Edison stock certificates were not in the contents of the safe deposit box ⁴⁷⁷ that Mr. Plummer had closed out. A portion of the letter stated: “... The atty I had at that time should have collected them along with contents of safety box but made no mention of them.

He seemed very stupid & I am too old & so very ill. I must have some peace the rest of my life. He kept the last will I had made. Tho he never had full power of atty only limited.

I have never once given any one full p. of atty.... If he showed you any full p. of atty it was evidently forged.” When questioned by the court whether he had any falling out with the decedent or whether there was any dissension that occurred during the last few months of her life, Mr. Plummer stated: “None to my knowledge, if Your Honor please. She apparently got — she began going down hill very rapidly toward the end there. She was either 82 or in her 82nd year.

The death certificate and the hospital records mention senility as one of her problems at the time. As her condition worsened then to me it seemed as if she became mad with the world and everybody connected with it. And I can assure Your Honor that I never knowingly did anything to offend her, anything other than to try to assist her with her problems. But this unfortunate incident about she not thinking that she had received her stock certificates and cancelled checks, in thinking that the bank had something to do with it or that I should have gotten them for her under my power of attorney.

She, in her late confusion, just before she died she did apparently get mad with me at that time, but if she destroyed her will, which I do not think she did, she certainly did not know what she was doing and could not possibly, in my judgment, have had the capacity to appreciate what she did at that time. And I think ⁴⁷⁸ her doctor will indicate as much if he, if Your Honor wants to hear any medical testimony.” The month before she died, Mrs. Murray wrote several letters to John Kepler Knight, a second cousin and one of the appellees herein. In many of the letters she expressed her distrust of Mr. Plummer. In early July, Mrs. Murray wrote her cousin that she would send him a “restricted” power of attorney.

Mr. Plummer subsequently prepared the power of attorney, but the form was never executed. On July 20, Mrs. Murray wrote to Mr. Knight: “What did P [Plummer] tell you when you called him? Just afterward he wrote me he would bring his secretary here & give her the Power of atty which shows he is determined to grab everything & you would get nothing whether you want the job or not. That shows all too plainly how little he is to be trusted.

I’ve never liked him even a little bit but didn’t know who to get & had to have someone because Myra’s 1st husband’s people were so bad. You should see the nutty letter came from P this Am. All, the bunch of LIES! Of course I’ll Ignore it.

Nelle” Mr. Plummer explained below that his secretary was a Notary Public and was going over to Mrs. Murray’s home merely to notarize the power of attorney. On July 23, Mrs. Murray wrote to Mr. Knight: “I suppose its easy to be having been impressed after talking to P once but I was not. & have always regretted not having asked the Trust company to recommend some one else after all the worry and misery he has caused me in the past over 14 [sic] ⁴⁷⁹ years. Please, as a blood relative, do not tell him I was thought to be dying. He wrote me not long ago that he would bring his secretary here and give hgr the power of atty!

My God! the last thing I need is two of him so I ignored it. And that in spite of your being so close & whether or not you are interested. I am really afraid of that guy since he has so little scruples. Protect me if you can. ...

He’s practically away most all of